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valid so far as the interests of all persons concerned are affected.
An excellent discussion of these principles is to be found in a ruling on Additional Compensation, 4 Compt. Dec. 696 (1898). Revised Statutes, section 1765, provided that no officer in any branch of the public service should receive any additional compensation for any other service whatever. One Dickinson was a disbursing agent for the World's Columbian Commission; he at the same time acted as Secretary. The question was whether this provision of the statutes applied to him. And it was held that it did not; since neither of these positions was an office.
Comptroller TRACEWELL wrote, in substance, on this point: The essential characteristic of an office is the exercise of some function of the government. An employe is one who is employed under a contract to perform a service. A public employment is distinguished from a public office by the fact that in the one case the authority to perform a public service is derived from a contract, while in the other it is derived from the law. An office is a public station. The term embraces the ideas of tenure, duration, emolument, and duties. If there is a contract with another person to perform some portion of the service, the persons thus employed are known as agents or employees.32
32 CLASSIFICATION OF OFFICERS.—United States v. Hartwell, 6 Wall. 393; State v. Gardner, 43 Ala. 234; Humphry v. Sadler, 40 Ark. 100; Patton v. Board of Health, 127 Cal. 388; Ogden v. Raymond, 22 Conn. 379; In re House Bill, 9 Colo. 628; State v. Hocker, 39 Fla. 477; Polk v. James, 68 Ga. 128; Matter of Notaries Public, 8 Hawaii, 561;, People v. Kipley, 171 Ill. 44; Foltz v. Kerlin, 105 Ind. 221; State v. Spaulding, 102 Ia. 639; State v. Cobb, 2 Kan. 33; Perkins v. Auditor, 79 Ky. 306; Opinion of Justices, 3 Me. 481; County Com’rs v. Duvall, 54 Md. 350; Brown v. Russell, 166 Mass. 14; People v. Langdon, 40 Mich. 673; County Com’rs V. Jones, 18 Minn. 199; State v. Bus, 135 Mo. 325; Shelby v. Alcorn, 36 Miss. 273; State v. Moores, 52 Neb. 770; State v. Broome, 61 N. J. L. 115; Whitehouse v. Langdon, 10 N. H. 331; People v. Vilas, 36 N. Y. 459; Eliason v. Coleman, 86 N. C. 237; State v. Jennings, 57 Oh. St. 415; Hamlin v. Kassafer, 15 Ore. 456; Commonwealth v. Evans,
§ 44. Officer.
A public office, then, is the right, authority and duty conferred by law by which for a given period, either fixed by law or through the pleasure of the creating power of government, an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public. The warrant to exercise powers is conferred, not by a contract, but by the law. It finds its source and limitation in some act of expression of governmental power. Oath, salary, operation, scope of duties, are signs of the official status; but no one is essential. The essential thing is that in some way or other the officer is identified with the government.
The position of the officer is well set forth in Byers v. United States, 22 Ct. of Cl. 59 (1887). The ConsulGeneral at Rome was paid at the rate of $2,000 a year; he claimed that the salary was $3,000; and this suit is brought for the difference. For the year during which he held office the Diplomatic Appropriation Act appropriated $2,000, of which the Secretary of State notified him when his appointment was made. His predecessor in office had, indeed, been paid at the rate of $3,000 per annum by disposition of the executive, but in the present case it was plain that the present appointment was upon the $2,000 basis.
74 Pa. St. 124; Gray V. Granger, 17 R. I. 201; Alexander V. Mc • Kenzie, 2 S. C. 81; Beard v. Decatur, 64 Tex. 11; McCornick v.
Thatcher, 8 Utah, 294; Leigh's Case, 1 Munf. 468; Matter of Mosness, 39 Wis. 509.
The case is of interest for the analysis of the situation. RICHARDSON, the Chief Justice, said in one part: It has been claimed by the executive that by the constitution to the executive alone is granted the power to appoint diplomatic agents of any rank or title at any time and at any place; and upon the exercise of this power Congress can place no extension or limitation by undertaking either to create, abolish or change the character, title or rank of officers. On the other hand, to the legislative branch of the government alone is granted the power to provide for the compensation of those as well as all other public servants. During part of the terms of the early presidents, Congress annually appropriated a sum in gross for the expenses of intercourse with foreign nations, leaving it to the executive to fix the salaries of its several appointees. In some cases appropriations have been made for particular officers, not to exceed the sums named, still leaving the executive all discretion to determine the amount to be paid. When Congress, by inadvertence or otherwise, has used language in legislative enactments which appear to encroach upon the constitutional prerogative claimed by the executive in the establishment of diplomatic agents abroad, it has been met with dignified expressions of exception.
This distinction between an officer and an agent is seen again in Ogden v. Raymond, 22 Conn. 379 (1853). This was an action of assumpsit to recover for services for teaching school by the plaintiff. The defense of the defendant was that the services in question were (164)
rendered to a school district in consequence of a contract made by the defendant as trustee of the school district. Is a school trustee an officer or an agent then? That is the issue.
ELLSWORTH held on that point in substance: The defendant was a public agent and is therefore to be presumed to have acted in a public capacity. We apprehend that the defendant, deriving his power from a general law in an election by the people, is a public agent as much as an officer of the state, county, town or district is. Wherein is the difference? All derive their power from the same source. All such are offcers, not agents. The determining thing is that the person is constituted a representative of the government. 3:
$ 45. Employe.
An elementary case upon this distinction between office and employment is Daily v. Freeholders of Essex, 58 N. J. L. 319 (1895). An act to reorganize the boards of chosen freeholders, etc., passed in 1894, provided in one clause that the terms of office of all offi. cers now holding office shall expire and all such offices shall become vacant. Did that law apply to the plaintiff in this case, a janitor of the court-house—was he an officer or was he an employee?
33 OFFICER.—United States v. Hartwell, 6 Wall. 393; Comer V, Bankhead, 70 Ala. 493; Humphry v. Sadler, 40 Ark. 100; People v. Woodbury, 14 Cal. 43; Castle v. Lawlor, 47 Conn. 340; Kennedy v. School Dist., 48 la. 189; State v. Cobb, 2 Kan. 33; Snapp v. Commonwealth, 82 Ky. 173; McManus v. Weston, 164 Mass. 263; People v. Langdon, 40 Mich. 675; State v. May, 106 Mo. 488; Peo. ple v. Pinckney, 32 N. Y. 377; Kenny v. Hudspeth, 30 Vroom. 320; Doyle v. Alderman of Raleigh, 89 N. C. 133; State v. Jennings, 57 Oh. St. 415; In re Newport Charter, 14 R. I. 655; Alexander v. McKenzie, 2 S. C. 81; United States v. Hatch, 1 Pin. 182.
LIPPINCOTT, J., said as to that: It is clear from the provisions of this section of the act that the prosecutor, a janitor of the court-house, was protected from removal unless for cause and upon notice and a hearing. There exists no justification for the suggestion that he held a public office. He was holding a position. He was no more a public officer of the county by virtue of his appointment as janitor, than is the janitor of an insurance building an officer of the insurance company that occupies it. This is too clear, indeed, for further discussion.
The relation between officer and employee it seems may be stated in as brief a form as this: The officer may employ agents when necessary in the course of administration-Power of Appointment, 4 Opin. 248 (1843). The questions propounded concerned, first, whether the executive could appoint an agent or commissioner to make certain investigations; second, whether such agent or commissioner could be paid under a general appropriation law. It was intimated in the request that the urgency was pressing, and that the Secretary of War felt that the best interests of the country called for this particular appointment at this particular time. Employment of agents, it was claimed, was a method of administration.
The opinion of Attorney-General NELSON was brief, but it was to the point: The power of appointment of agents results from the obligation of the executive department of the government to take care that the laws be faithfully executed; an obligation imposed by the